INSIGHT: Some US plants missing anti-terror security deadlines

24 June 2010 17:43[Source: ICIS news]

By Joe Kamalick

WASHINGTON (ICIS news)--The Department of Homeland Security (DHS) this week initiated its first enforcement actions against US chemical facilities under federal anti-terrorism law, warning that they face fines for failing to comply.

Department spokesman Chris Ortman said that administrative orders have been sent to 18 unidentified facilities, warning that they must submit overdue site security plans in compliance with the federal Chemical Facilities Anti-Terrorism Standards (CFATS).

The department also confirmed that all 18 of the non-compliant sites are in the top tier of facilities considered by federal officials to be most at risk for an attack by terrorists intent on causing massive off-site casualties.

On one hand, it might seem worrisome that, three years into the CFATS implementation, so many chemical facilities in that highest-risk category still are not with the programme.

And, at a time when many in the US Congress are pressing for much tougher and broader anti-terrorism security controls over chemical plants - including authority to dictate feedstock or process changes - the dilatory response of 18 facility operators arguably lends support to those calling for more aggressive rules.

But Evan Wolff, a ?xml:namespace>Washington, DC, attorney whose clients include many firms subject to CFATS regulations, contends that the department’s initial enforcement moves are evidence that the programme is working.

“I think it is important to put this in perspective,” Wolff said of the enforcement proceedings against the unidentified 18 facilities.

“When you consider that some 38,000 facilities went through the top-screen process and about 7,000 of those were identified as high-risk sites subject to the regulations, the 18 facing enforcement action represent a very small percentage,” he said.

Wolff, who heads the homeland security practice at Hunton & Williams in Washington, said the relatively small number of operators who have yet to meet department standards for site defences indicates that the overwhelming majority of operators are in compliance and up to speed.

The CFATS regulations, which came into force in April 2007, require that certain chemical facilities - those deemed to be at high risk for possible attack by terrorists - must conduct assessments of their security vulnerabilities and submit to the department a formal site security plan designed to remedy shortcomings.

A facility’s site security plan (SSP) must meet standards set by the department, but plant operators may select measures they prefer to satisfy the federal criteria in 18 areas, such as perimeter control, visitor access, personnel background checks, safeguards against theft or diversion of hazardous materials or in-house sabotage.

DHS spokesman Ortman said the 18 facilities that have failed to produce security plans have been given several reminders, beginning in late 2009, about their obligations.

The administrative orders sent this week represent the final step before the department begins prosecution.

Under the law, DHS can assess fines of up to $25,000 (€20,250) per day for failure to comply.

In addition, the law gives the department authority to shut down a chemical facility if its owners fail to respond to DHS requirements for security improvements.

As many as 7,000 US chemical facilities - production sites, storage yards, terminals - initially qualified as high-risk sites, but that number has since been reduced to something over 6,000.

In addition to chemical production and storage sites, the high-risk facilities include a broad range of other industrial operations, such as natural gas terminals, electric power utilities and minerals mining, among others.

Those high-risk facilities are divided into four tiers, based on the degree of risk posed by the volumes and types of chemicals produced or stored and a given site’s proximity to population centres.

For obvious security reasons, the department declined to identify the 18 facilities or to indicate the types of sites involved or even where they are generally located.

The department said the 18 operators have ten days from the date of receipt to respond to the administrative orders sent early this week, which means that any of those still lacking security plans by the US Fourth of July holiday are in line for some legal fireworks.

It seems odd that any operators with plants or other regulated sites in the highest-risk category would be so slow to respond.

But Wolff was not surprised that the 18 sites found lacking in compliance were all in the top tier of most at-risk facilities.

“It’s interesting but not surprising,” he said.“It indicates that the department is working and focusing first on the highest priority facilities.”

As the department’s regulators and on-site plant investigators gradually work their way down through the four tiers of at-risk facilities, additional warning letters and administrative orders are likely.

It remains to be seen whether this opening salvo of federal enforcement actions under CFATS will aggravate or reassure those in Congress seeking tougher regulations.

In either case, the press of other business before the US Senate - where new anti-terrorism legislation is stalled - makes it unlikely that Congress will complete work on a set of new chemical security criteria before the month-long August recess - or before the end of this year.

After August, all members of the US House and a third of those in the Senate will be almost wholly consumed with campaigning in the run-up to the 2 November US national elections.

They will be too concerned about their job security to pay much attention to site security.